Final Report of the Hearing Officer (1)

COMP/39.482 — Exotic Fruit

2012/C 64/08

This case concerns a cartel between the undertakings Chiquita (2) and Pacific (3) (‘the Parties’) in the import, marketing and sales of bananas in Greece, Italy and Portugal.

BACKGROUND

The case is an off-spring to the Bananas case (COMP/39.188) in which the Commission found that the undertakings concerned had participated in a cartel covering Northern Europe between 2000 and 2002 (4).

On 26 November 2007, Chiquita was informed that Commission officials would carry out an inspection at its premises and since Chiquita had already received conditional immunity from fines for the whole Community it was, therefore, under a duty to co-operate pursuant to the Leniency Notice. The Commission also carried out surprise inspections according to Article 20(4) of Regulation (EC) No 1/2003 at the premises of other fruit importing companies including Pacific Fruit Company Italy in Rome.

WRITTEN PROCEDURE

Statement of Objections

The Commission issued, on 10 December 2009, a Statement of Objections (SO) to seven legal entities belonging to the Parties. In the SO the Commission alleged that the Parties have infringed Article 101 TFEU by coordinating their price and volume strategies, including future prices, price levels, price movements and/or trends while exchanging information on future market conduct, supply, prices and volumes during a period of around 18 months. The Commission also announced its intention to impose fines.

Access to file

The Parties received access to the file on 21 December 2009 through a DVD containing the index of all documents in the file and all documents accessible for both of them. Each of the Parties received furthermore a CD-ROM with documents used only against them in the liability part of the SO and confidential for the other Party. They were, finally, granted access to the submissions under the Leniency Notice at the Commission's premises (5).

In furtherance, both Parties submitted several requests to DG Competition for further access to the file which amounted to around 2 000 pieces of non-disclosed information. Following the refusal of access for most of the requested information, the Parties submitted their requests to me. Each Party claimed that the non-accessible information of the other Party had been unduly heavily redacted and was only accompanied by a short and uninformative summary, which made it difficult to ascertain the content and/or to provide a reasoned and justified request for further disclosure.

When examining a disclosure request the confidential nature of each piece of requested information must be assessed and weighed against the requesting party's legitimate interest of having that piece of information disclosed in order to effectively exercise its right to be heard. Due to the significant amount of requested information, the exercise proved to be very cumbersome and time-consuming, inevitably leading to a delay in the proceedings. The Parties thus proposed to conclude a Non-Disclosure Agreement (‘NDA’), as a time-effective and viable alternative to the traditional access to file exercise. In view of the significant amount of information to which access had been requested and the fact that most of the requested information originated from the two parties involved, I fully endorsed the proposal and the Parties subsequently negotiated an agreement that was signed by them in March 2010. According to the NDA, the Parties provided, on a counsel-to-counsel basis, mutual access to the redacted information for which the other party had requested access. Subsequently, after reviewing the information, the Parties retained their access requests solely for information which they deemed necessary for their rights of defence. The NDA exercise was completed four weeks after the execution of the NDA agreement to be completed and no confidentiality issues arose as a consequence thereof. As regards pending requests for further access that had not been covered by the NDA, these were decided by me pursuant to Article 8 of the Mandate.

Following this exercise, all requests for further access to the file lodged by the Parties have been satisfactorily resolved.

In addition, following the Oral Hearing, the Parties obtained from DG Competition additional access to other documents in the file.

Extension to deadline for reply to SO

In light of the requests for additional access and the time required to examine those requests, including the conclusion and implementation of the subsequent NDA, the Parties were granted an additional time period to respond to the SO.

Both Chiquita and Pacific responded within the given deadlines.

ORAL PROCEDURE

Oral Hearing

Both Chiquita and Pacific exercised their right to be heard in an Oral Hearing, which took place on 18 June 2010.

OTHER PROCEDURAL ISSUES

Legal Professional Privilege

Throughout the proceedings, one Party requested the exclusion of certain documents from the file claiming Legal Professional Privilege (LPP). Whilst some documents were excluded from the file, DG Competition retained one particular document, although it accepted provisionally the Party's confidentiality claims in relation thereto.

The Party concerned requested the Hearing Officer to instruct the exclusion also of this document from the file. Karen Williams, the Hearing Officer responsible at the time, considered that the request did not relate to any provision of the Mandate, hence ruling out any formal decision, and provided only informal observations on 18 December 2009 endorsing the position of DG Competition.

As I received no further comments in this regard, I consider this issue to have been resolved.

Access to buyers' replies

As part of its requests for further access to file, one Party requested access to non-confidential versions of individual buyers' replies to requests for information, rather than the common non-confidential summaries of their replies that had been made accessible.

In principle, parties should be granted access to all documents making up the Commission file with the exception of internal documents, business secrets of other undertakings, or other confidential information. In the latter case the Commission may, for example, provide summaries of responses it has obtained to requests for information in order to protect the confidential information contained therein. If justified, it may even do so on its own volition (6). However, while undertakings have a legitimate interest in the protection of confidential information, that interest must be balanced against the rights of the defence (7).

In this case, I had some doubts that all non-confidential summaries faithfully reflected the responses obtained. Hence, the Party was provided with an improved version of some of the summaries and I instructed DG Competition to give the Party access to the two non-confidential versions available on the file. However, the Party was not given the non-confidential versions in their original form as further redactions were made by DG Competition of its own volition without provision of a justification (8).

While this omission may be incompatible with due process, it does not constitute a violation of the parties' rights of defence. The Commission does not rely in its draft decision on these buyers' replies. It is furthermore not apparent that the redacted information might have been useful for the Party's defence (9).

THE DRAFT DECISION

After having reviewed the draft Decision, I come to the conclusion that it deals only with objections in respect of which the Parties have been afforded the opportunity of making known their views (10).

I observe that after having heard the Parties the duration of the infringement has been reduced from 18 months to around nine months in the draft Decision. Furthermore, DG Competition has recommended not to withdraw the immunity status granted to Chiquita.

In view of the above, I consider that the right to be heard of all participants to the proceedings has been respected in this case.

(1)  Pursuant to Article 15 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings (OJ L 162, 19.6.2001, p. 21) (‘Mandate’).

(2)  Chiquita Brands International Inc, Chiquita Banana Company BV and Chiquita Italia SpA.

(3)  FSL Holding NV, Firma Leon Van Parys NV and Pacific Fruit Company Italy SpA.

(4)  Austria, Belgium, Denmark, Finland, Germany, Luxembourg, the Netherlands and Sweden; see the Summary Decision (OJ C 189, 12.8.2009, p. 12).

(5)  Chiquita received access at the Commission's premises on 16 December 2009 while Pacific exercised its right of access on 18 and 21 December 2009.

(6)  Case T-5/02 Tetra Laval BV v Commission (2002) ECR II-4381, paragraph 101 seq.

(7)  Case T-410/03 Hoechst v Commission (2008) ECR II-881, paragraph 153; Case T-36/91 ICI v Commission (1995) ECR II-1847, paragraph 98.

(8)  See Tetra Laval BV v Commission, paragraph 101.

(9)  See Tetra Laval BV v Commission, paragraphs 109 and 115.

(10)  Article 15 of the Mandate.